Racial democracy is the notion that Brazilian society is relatively free from the racial prejudice, discrimination, and tension found historically in the United States, South Africa, and other western nations. Supporters of this view indicate as evidence in its favor Brazil’s alleged peaceful abolition of slavery, the supposed lack of racial violence, the prominence of blacks in Brazilian historical and literary works, the absence of “Jim Crow” or apartheid laws, and the pervasive miscegenation of Brazilian society (Freyre 1986, 1963a; Degler 1986; Freire-Maia 1987; Fiola 1990).

“[The Invisible Line] makes real the fact that, not so long ago, American citizens were forced into hiding their lineage and identity just to live free in this democracy, the perils and sense of loss, no matter which road they chose, and the price being paid even to this day by their descendants, and by extension, all of us,” the judges said in a press release issued by Columbia and Harvard universities.

The J. Anthony Lukas Prize Project, established in 1998 in honor of Pulitzer Prize-winning New York Times journalist J. Anthony Lukas, is co-administered by the Columbia University Graduate School of Journalism and the Nieman Foundation for Journalism at Harvard University. The prize recognizes excellence in nonfiction that exemplifies the literary grace and commitment to serious research and social concern that characterized the work of its namesake, J. Anthony Lukas, who died in 1997. Sharfstein will receive the award prize of $10,000 on May 1, 2012, at a ceremony at Harvard University.

In The Invisible Line: Three American Families and the Secret Journey from Black to White, Sharfstein chronicles the history of three African American families who crossed the color line and assimilated into white communities, starting in the 17th century. The book is a result of Sharfstein’s research on the legal history of race in the United States and on dozens of families that, for social, economic, safety and other reasons, chose to change their racial identity and create new lives. He found court and government records, personal letters and other archives that helped paint vivid pictures of these Americans and document their migration across the racial divide…

In America, race is a riddle. The stories we tell about our past have calcified into the fiction that we are neatly divided into black or white. It is only with the widespread availability of DNA testing and the boom in genealogical research that the frequency with which individuals and entire families crossed the color line has become clear.

In this sweeping history, Daniel J. Sharfstein unravels the stories of three families who represent the complexity of race in America and force us to rethink our basic assumptions about who we are. The Gibsons were wealthy landowners in the South Carolinabackcountry who became white in the 1760s, ascending to the heights of the Southern elite and ultimately to the U.S. Senate. The Spencers were hardscrabble farmers in the hills of Eastern Kentucky, joining an isolated Appalachian community in the 1840s and for the better part of a century hovering on the line between white and black. The Walls were fixtures of the rising black middle class in post-Civil WarWashington, D.C., only to give up everything they had fought for to become white at the dawn of the twentieth century. Together, their interwoven and intersecting stories uncover a forgotten America in which the rules of race were something to be believed but not necessarily obeyed.

Defining their identities first as people of color and later as whites, these families provide a lens for understanding how people thought about and experienced race and how these ideas and experiences evolved-how the very meaning of black and white changed-over time. Cutting through centuries of myth, amnesia, and poisonous racial politics, The Invisible Line will change the way we talk about race, racism, and civil rights.

Three American families’ stories…

The Gibsons
The Gibsons were among the first free people of color in seventeenth-century Virginia, most of whom were free because their mothers were English and by law slavery followed the status of the mother. In the early l700s, as Virginia’s laws made it increasingly difficult for free blacks to own property and earn a living, the Gibsons left the colony for the southern frontier. When the Gibsons reached South Carolina in the 1730s, the colonial assembly worried.that they had come to organize a slave revolt. But after personally interviewing the family, the colonial governor granted them hundreds of acres of land in a Welsh and Scots-Irish community. After one generation they were neither black nor white-they were planters. In the nineteenth century, they rose to the heights of the Southern aristocracy. They sent their sons to Yale and had vast holdings of land and slaves near Vicksburg, Mississippi, Lexington, Kentucky, and Terrebonne Parish, Louisiana. Gibsons were rebel officers, powerful opponents of Reconstruction, and leaders of the New South.’ One became a United States Senator from Louisiana.

The SpencersThe Spencers’ story begins in the Appalachian Mountains. In an area that had more slaves and more free blacks than anywhere else in eastern Kentucky-largely because of a bustling salt mining industry there in the early 1800s-two free men of color began having children with a pair of white sisters who had recently moved from South Carolina. Shortly before one man, George Freeman, was prosecuted for interracial sex, the other man, Jordan Spencer-possibly Freeman’s brother or son-moved with his family one hundred miles deeper into the mountains. Even though he was visibly dark-skinned, his new community in Johnson County, Kentucky, decided that he could be white. His family hovered on the line between black and white for the rest of the century, farming and logging in a mountain hollow before heading into the coal mines.

The WallsThe Walls trace their roots to a wealthy plantation owner in Rockingham, North Carolina. Stephen Wall never married, but he had children with three of his slaves, In the 1830s and 1 840s, he freed his children and sent them to Ohio to be raised by radical Quaker abolitionists. He bought land for them, generously supported their education at places like Oberlin College, and willed them a lot of money. No one knows why. He kept their mothers in bondage. The children became ardent abolitionists and served in the Union Army and Freedmen’s Bureau. After the War, several moved to Washington, D.C., where they fought for civil rights and women’s rights and raised their families to expect nothing less than equality. But as Reconstruction gave way to Jim Crow, their children disappeared into the white world.

Child-centered arguments have played a central role in debates over expanding marriage rights throughout history. Opponents of interracial marriage argued in Loving v. Virginia that “mixed race” children from interracial households were physically and psychologically inferior and suffered from social stigmatization. Over forty years later, child-centered arguments again took center stage in the debate over same-sex marriage. The arguments initially focused on the harms to children raised by same-sex parents—specifically, that such children suffer from stunted development and social alienation. Over the years, these arguments gradually morphed into claims that same-sex marriage harms all children, because the prevalence of same-sex marriage in society and its integration in school curriculum confuses children about gender roles and the “true” meaning of marriage. Tracing the evolution of child-centered arguments from Loving through the recent battle for same-sex marriage in California’s November 2008 election on Proposition 8 offers valuable lessons to same-sex marriage advocates about the propriety and consequences of using child-centered arguments in defining the marriage rights of adults.

INTRODUCTION

It really is what we call a teachable moment.
—Interim Director of the Creative Arts Charter School in San Francisco, describing a first-grade field trip to City Hall to watch a lesbian wedding.

On Friday, October 10, 2008, a group of first-grade children from the Creative Arts Charter School in San Francisco took a field trip to City Hall. The children’s first-grade teacher, a lesbian, was set to marry her longtime girlfriend that morning. The director of the charter school saw the wedding as a “teachable moment”—an opportunity for the children to witness firsthand the progression of civil rights in America.

Many same-sex marriage advocates heralded the first graders’ excursion as another step toward the full acceptance and integration of same-sex individuals in society. But other supporters worried that the field trip, while well intentioned, was ill timed and potentially damaging to the same-sex marriage cause. At that time, the debate over same-sex marriage had reached a significant crossroads. Earlier that year, the California Supreme Court issued a landmark decision declaring that a same-sex marriage ban violated both the due process and equal protection provisions of the California Constitution. Opponents of same-sex marriage responded quickly and forcefully with Proposition 8, a ballot initiative to amend the California Constitution to define marriage solely as a union between a man and a woman. On the day of the field trip, polls on Proposition 8 showed close to a dead heat on the issue. Many same-sex marriage advocates feared that the “teachable moment” played directly into the hands of their opponents, giving them new leverage that could ultimately shift momentum in favor of Proposition 8.

Not surprisingly, just one week later, the field trip became the target of new television advertisements supporting Proposition 8. The leading organization behind the Proposition 8 campaign, ProtectMarriage.com, had cautioned for months that state recognition of same-sex marriage would, among other things, force public schools to include teaching same-sex marriage in their curriculum. In their view, the field trip was concrete and visible evidence that their fears had been realized. Playing on those fears, their ad took advantage of news footage of the wedding, particularly footage of a first-grade girl who appeared sad, and almost confused, by her teacher’s lesbian wedding. This lasting image was paired with the warning that “children will be taught about gay marriage unless we vote yes on Proposition 8.” The ad first aired on October 28, 2008; Proposition 8 passed by a 52-48 margin exactly one week later on November 4, 2008.

Appeals to child welfare are neither new nor exclusive to the same-sex marriage debate. Such appeals have also been raised in other family law disputes, most notably the fight for interracial marriage during the era of Loving v. Virginia, the United States Supreme Court decision striking down Virginia’s ban on interracial marriage. Opponents of interracial marriage claimed that the “mixed-race” children produced by interracial couples were biologically inferior, suffered abnormal social and psychological development, and endured stigmatization by their peers. Similarly, opponents of same-sex marriage have wielded such claims for almost two decades, although the substance of their child-based fears has evolved. Like the early arguments used by interracial marriage opponents, the first child-centered arguments in the same-sex marriage debate focused on the harms to children raised by same-sex parents—specifically, that such children suffer stunted social and psychological development and face stigmatization by their peers. Over the years, these concerns gradually morphed into fears about how same-sex marriage harms all children, because the increasing prevalence of same-sex marriage in society and its integration into school curricula confuse children about gender roles and the true meaning of marriage.

This Comment examines modern views of marriage and how child-centered appeals have influenced the discourse on expanding marital rights, particularly within the context of Loving v. Virginia, Goodridge v. Dep’t of Public Health, Hernandez v. Robles, In re Marriage Cases, the battle over Proposition 8 in California, and supporting case law and legislation. These sources evince an evolution in judicial conceptions of marriage and the childbased arguments that have been used to expand or constrict such conceptions, from anxiety over “mixed-race” children during the fight for interracial marriage to concerns in the same-sex marriage debate about the psycho-social well-being of children raised by same-sex parents and, ultimately, the effects of same-sex marriage on public school curricula. The Comment concludes with an analysis of modern marriage as defined by courts and society today, the intersection of Proposition 8’s success with contemporary marital attitudes, and the role of the judiciary in the fate of same-sex marriage…

…In defending its ban on interracial marriage, Virginia appealed to many of the same child-centered arguments that motivated the enactment of the ban 276 years earlier. In its brief to the Supreme Court, Virginia declared that states have an interest in preserving the “purity of the races and in preventing the propagation of half-breed children.” Acknowledging the reality of persistent racism, Virginia claimed its interest in keeping the races “pure” stemmed not from the repulsion interracial children invoke in society, but rather from the idea that interracial children were seen as outcasts and would be “burdened . . . with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’” Virginia also emphasized the socioscientific consequences to interracial children, including the domination of racial inferiorities within children of mixed race and the social tension that it claimed was created when races of different socioeconomic backgrounds formed a family. Interracial couples also experienced higher divorce rates, Virginia argued, which would have negative effects on the (interracial) children produced by and raised within these families…